Last preserve of the ‘establishment’? Who are the Privy Council?

This week the Privy Council will make a decision about the form of press regulation to be introduced following the Leveson Inquiry, but what exactly is this mystical body which is being invoked to solves the nation’s problems?

The Privy Council is a constitutional anomaly and in some respects a bizarre throwback to an earlier age. One of the oldest institutions of the British constitution, the Privy Council emerged in the 13th century as a group of advisors to the monarch, and probably reached the height of its power under the Tudors. It spawned the older Whitehall departments, which began life as boards of the Privy Council, and also the Cabinet which emerged in the seventeenth century as the inner group of Privy Counsellors who held the trust of, and influence over, both the Monarch and Parliament. The powers of the Privy Council have been in decline since the 19th century when the Cabinet emerged as the principal decision-making body, but it does retain some decision-making functions mainly relating to the nine hundred or so bodies which operate under a Royal Charter, these include universities, professional bodies and cities. The Privy Council can also play a role in the passage of delegated legislation, laws which Ministers are empowered to make without reference to parliament, and makes decisions on matters relating to the prerogative powers which may be exercised by the government on behalf of the Crown without the need for legislation. Decisions made by the Privy Council have the force of law and are known as Orders in Council.

The Privy Council also retains a Judicial Committee which is the final court of appeal for British overseas territories and those Commonwealth countries which have retained the right to appeal to the UK judicial system. The Judicial Committee consists of Supreme Court Justices and some senior Commonwealth Judges and meets in the Supreme Court Building in Parliament Square.

There are currently over six hundred Privy Counsellors, making it almost as large as the House of Commons. Membership comprises some of the most prominent, and also some of the most obscure, individuals in British public life, those who in previous age would have been referred to simply as ‘the establishment’. Member are appointed for life and include all past and current Cabinet Ministers and past and current leaders of the main Opposition Parties. Ministers who are not members of the Cabinet may also be made Privy Counsellors. Aside from political appointees the membership includes Archbishops, some senior judges and other notable public figures. Recent appointments have included the former Times journalist Peter Riddell, and the academics Lawrence Freedman and Martin Gilbert who sat on the Iraq war inquiry. The head of the Privy Council is the President of the Council, a post currently held by Nick Clegg. Members of the Privy Council are denoted by the title Right Honourable.

Although for most, membership is simply a titular honour, former Prime Minister, John Major, observed that amongst MPs membership is ‘coveted more than any other recognition in the Commons’. In one notable example, Alan Clark, whose published diaries culminate with a detailed account of his induction, appears to have spent much of his Ministerial career in pursuit of elevation to the Privy Council.

In addition to revealing the importance which some attach to the trappings of office, the publication of a succession of diaries and memoirs by former Cabinet Ministers has also breached the long held convention that discussions held in Privy Council meetings would not be made public. That convention was dramatically breached in 1976 when the Labour MP, Richard Crossman, published the diaries of his time as Lord President of the Council from 1966 to 1968 in which he recounted his regular meetings with the Queen, the mundane nature of Privy Council business and his irritation that government Ministers occasionally had to travel as far as Sandringham and Balmoral for Privy Council meetings. A number of Ministers have followed Crossman’s lead although few have been quite as candid in criticising the system (see for example, the diaries of Alan Clark and David Blunkett). The following extract from the memoirs of former Labour Cabinet Minister, Clare Short, offers an entertaining recent insight into the organisation and nature of Privy Council meetings:

I took my turn undertaking Privy Council duties. The system is that there is a rota for attendance at Privy Council meetings. The quota is about eight and you have to attend every few months. You stand in line while the Queen reads through and agrees legislation, charters of universities and all sorts of other things she has to approve. Once, when I had been told I was essential for a quorum, I found myself very tight for time. We drove at speed to the palace and I rushed up the stairs, causing a commotion as I entered because the meeting had already started. I apologised and the Queen was very gracious and the proceeded with the business. After a couple of minutes, my bleep went off and I caused another kerfuffle as I retrieved it and turned it off. At the end of the meeting, the Queen had a word with each of us, as she does, and said to me with a twinkle in her eye, ‘Well, my dear, I hope it wasn’t anyone important.’ (C. Short, An Honourable Deception, p.63).

A number of Privy Counsellors have also described, sometimes in excruciating detail, the process of being sworn in to the Privy Council. Senior politicians have written with a mixture of bemusement and respect about the whole process, noting in particular the precise attention to detail insisted upon by the Clerk of the Council who is in the habit of arranging a rehearsal beforehand to clarify such matters as how to kiss the Queen’s hand. John Major described it as ‘a very jolly affair’, whilst Paddy Ashdown found the whole process ‘faintly irksome’, and Nigel Lawson described the ceremony ‘as brief as it is bizarre, requiring the recipient to progress to the monarch by a complex mixture of bowing, walking, and kneeling at specified intervals’. New members are required to swear an oath of loyalty in front of the Queen. Despite the bizarre ceremony and archaic language, the Privy Council oath has real substance. It is to some extent, an older and more powerful version of the Official Secrets Act. The wording of the centuries old oath was secret until recently, although it is now, perhaps predictably, reproduced in full on the Privy Council website.

Despite its vast and august membership much of the day to day work of the Privy Council is administrative, relating to the work of chartered bodies, and is now carried out by a secretariat rather than the Privy Council itself. Members of the government do take part in the work of the Privy Council but even then few attend meetings of the Council, in which three members constitute a quorum, and as is illustrated in the extract from Short’s memoirs above, their presence is largely to witness the rubber-stamping of decisions made elsewhere.

In the case of this week’s decision about the granting of a Royal Charter to a new press regulatory body, this is being made by a sub-committee of the Privy Council which is comprised of six MPs and two members of the House of Lords, almost all of whom are also current Cabinet Ministers. The committee is co-chaired by the Liberal Democrat Danny Alexander and the Conservative Maria Miller. The Prime Minister’s decision to introduce press regulation by Royal Charter avoided the need to introduce regulation through legislation (the preferred option of many of the alleged victims of press intrusion), effectively preventing a difficult parliamentary debate and a rough-ride in the press. What is slightly different about the current situation is that bodies representing the press have thrown the cat amongst the constitutional pigeons by tabling an alternative charter, which has in effect forced the Privy Council to make a decision. There has been much discussion this week about the detailed and careful discussions taking place within the Privy Council, overlaid at times with a kind of mystical significance, but the notion that this committee of Government Ministers will arrive at a decision which does not reflect the preferred option of the Government is unlikely to say the least.